State Attorneys General December 12 Update

Squire Patton Boggs’ State Attorneys General Practice Group is comprised of lawyers who have served at senior levels in state AG offices around the country and whose practices focus, to one degree or another, on representing clients before these increasingly assertive and powerful, yet often overlooked, government agencies, as explained in detail here.

In these updates, we will call attention to the most noteworthy state AG news or developments emerging in the previous week.

Litigation

Attorneys general representing 42 states and the District of Columbia have reached a $19.5 million settlement with Bristol-Myers Squibb Company (BMS) “related to the drug company’s alleged improper marketing of Abilify,” according to a press release from Nevada AG Adam Laxalt. Abilify is the brand name for the prescription drug aripiprazole, “an atypical antipsychotic drug.” According to the Nevada AG’s press release, the states’ allegations included that “BMS improperly promoted Abilify for use in elderly patients who exhibited symptoms consistent with dementia and Alzheimer’s disease without FDA approval for these uses and without first establishing the drug’s safety and efficacy for these uses,” and that BMS continued promoting Abilify to elderly patients “[d]espite receiving a ‘black box’ warning stating that elderly patients with dementia-related psychosis who are treated with antipsychotic drugs have an increased risk of death.” A press release from New York AG Eric Schneiderman furtehr stated that the consent decree with BMS contains “strong injunctive terms” that included prohibiting BMS from “[p]romoting Abilify for off-label uses” and “[m]aking false or misleading claims about Abilify,” among other prohibitions.

Arizona AG Mark Brnovich filed a Petition for Special Action in the Supreme Court of Arizona on December 6 “alleging the City of Tucson’s gun destruction ordinance violates Arizona law,” according to a press release. Arizona law “prohibits local governments from destroying firearms. However, the City of Tucson enacted an ordinance that requires police to destroy seized firearms,” per the press release. The Petition for Special Action argues that “[b]ecause the Ordinance requires [the Tucson Police Department] to take actions contrary to state law, the Ordinance violates the law,” and requests in part that the court “declare that the Ordinance violates state law.”

Advocacy

Attorneys general from 10 states have written a letter to Vice-President Elect Mike Pence and “the Trump transition team” urging the Trump Administration to overturn a 2011 Department of Justice (DOJ) decision that the AGs say “opened the door to expansive Internet gambling and exposed states to the significant negative impacts that often accompany online gambling.” The letter, dated November 17, was signed by the AGs of Louisiana, Michigan, Nebraska, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Utah. The letter states that in 2011, “the Obama administration overruled 50 years of practice and precedent when a [DOJ] Office of Legal Counsel opinion claimed the Wire Act only applied to sports betting, and not to other types of online gambling. Dismantling the Wire Act undermined state online gambling prohibitions.” Those AGs state that the “risks to our citizens” posed by online gambling are “real and extensive,” including that the “ability for youth to access online gambling sites presents a significant risk to teens, a risk more easily mitigated at traditional brick-and-mortar gambling establishments,” and that the “anonymity of the Internet offers vast opportunities for criminal activity, terrorist financing, and money laundering through online gaming sites.” The AGs state in the letter that by “returning to the Wire Act’s original interpretation, the Trump Administration will seize an opportunity to restore the rule of law and reinstate vital protections for our communities.”

President-elect Donald Trump has nominated Oklahoma AG Scott Pruitt for administrator of the Environmental Protection Agency (EPA), according to a Washington Post report. According to that report, Pruitt has “spent much of his energy as attorney general fighting the very agency he is being nominated to lead,” including joining a “coalition of state attorneys general in suing over the agency’s Clean Power Plan, the principal Obama-era policy aimed at reducing U.S. greenhouse gas emissions from the electricity sector.” Pruitt was quoted as saying: “The American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses,” according to the report.

Representative Xavier Becerra (D-CA) has announced that he will leave Congress to serve as California’s next AG, succeeding Kamala Harris, who was elected to the US Senate in November, per a CNN report. California Governor Jerry Brown named Becerra to the AG position on December 1. In a call with reporters, Becerra “framed much of his new job in terms of standing up to the Trump Administration, if necessary,” and Becerra was quoted as saying: “The federal government isn’t going to be as much of a friend to California, and I hope doesn’t become a foe to California, but we have to be prepared to defend the forward-leaning progress that California has made for its people,” according to the CNN report.

Investigation

Florida AG Pam Bondi has announced that a Florida nursing assistant has been arrested “for Medicaid fraud and grand theft” for allegedly submitting to her previous employer, a “home and community-based services” Medicaid provider, “service logs and timesheets . . . for services not provided.” The case was investigated by the Florida AG’s Medicaid Fraud Control Unit. According to the AG’s news release, the nursing assistant’s employer “relied on the daily service logs [that the nursing assistant] submitted to submit claims of more than $1,900 to the Florida Medicaid program.” If convicted, the nursing assistant “faces up to 10 years in prison, fines and restitution.”